84 N.J.L. 540 | N.J. | 1913
The opinion of the court was delivered by
This was a suit for shooting and killing the plaintiff’s dog. There were two defendants, as to one of whom nonsuit was entered without objection of plaintiff, and when the plaintiff rested his case an involuntary nonsuit was also entered as to the defendant Williams. Prom that nonsuit the present appeal is taken.
The ground of nonsuit appears to have been that it was conclusively established .on plaintiff’s evidence “that his dog had been killing chickens, or was in the act of killing chickens, and that the killing of the dog was therefore justifiable.”
Section 3 of the act of 1901, page 331 (Comp. Stat., p. 72, pl. 87), provides that “if any dog shall be found killing, worrying or wounding any sheep, lamb, domestic animals or poultry, and the owner * * * being informed thereof shall refuse to kill such dog,” * * * such owner shall forfeit
It may well be doubted whether the cross-examination was properly allowed. The rule ordinarily followed by our trial courts is to limit tile scope of cross-examination to matters fairly comprehended within the direct, except for purposes of impeachment, testing of memory, and so on. Professor Wig-more argues strongly for cross-examination on any matter embraced in the issue. Wigm. Ev., § 1884 et seq., citing State v. Zellers, 2 Halst. 220, 229; Donnelly v. State, 2 Dutcher 463, 494, and Disque v. State, 20 Vroom 249. The recent case
But passing this point, and treating the admission of the defendant’s testimony on cross-examination as proper, the court erred in regarding the plaintiff as concluded thereby. The idea that a party calling a witness is “bound” by his testimony is a prevalent one, but is none the less a fiction. He may not impeach his character for veracity, nor impugn his credibility by general evidence to show him unworthy of belief, but he may prove the truth of any particular fact by any other competent testimony, in direct contradiction to what such a witness may have testified. Ingersoll v. English, 37 Vroom 463, citing 1 Greenl. Evid. (16th ed.) 442, 443b; Wigm. Ev., §§ 897, 908. Consequently, the court could not nonsuit on the ground stated if there was any conflict between the evidence of plaintiff and that of defendant on the facts required to bring the ease within the statute cited, even if such statute be construed to legalize the killing of a dog found killing or chasing chickens. If the defendant had rested his case, the finding of the court on weight of evidence would be final; but a nonsuit was improper, even in a trial without jury. Weston Co. v. Benecke, 53 Vroom 445. There was the same contradiction as to the dog chasing chickens, so the non-suit cannot be supported on that ground, nor on the further suggested ground that the dog was not registered and was straying. Pamph. L. 1894, p. 42;. Comp. Stat., p. 71, pl. 80.
Fo ground being perceived on which the nonsuit can be justified, the judgment will be reversed and the cause remanded for a new trial.